375 Pa. 193 | Pa. | 1953
Opinion by
In an appeal from a decree of the Orphans’ Court of Beaver County affirming decree of the register of
“July 7, 1949
“Dear Catherine:
“Just a few lines to let you know I am starting to Monaca, and I was very much pleased with the vacation. Catherine, I want you to know you are to get all I have when I die. Tell Mary Agnes and David that Uncle George said hello and give them a big hug and a kiss for me.
“I remain as ever
Uncle George Thompson.”
George Thompson, the decedent, died November 8, 1949, unmarried and without issue. Surviving him as next of kin were a brother, James Thompson, the appellant, and nephews and nieces, of whom Catherine Grimes Nicholson, appellee, was one. The writing was probated on November 22, 1949; the administrator cum testamento annewo filed its account, which was audited by the orphans’ court and a definitive decree of distribution was entered December 26, 1950, pursuant to which the balance of $14,571.63 was ordered paid and distributed. On November 19, 1951, three days prior to the expiration of the applicable two year period of limitation under the Register of Wills Act of June 7, 1917, P. L. 415, Sec. 21 [a], 20 PS 2005, appellant filed his appeal. A hearing was held in the orphans’ court. There were no objections to the admissions of evidence which stands uncontradicted. As the facts are undisputed, the testamentary character of the instrument is a question of law for the court: Kimmel’s Estate, 278 Pa. 435, 123 A. 405.
The identities of “Uncle George Thompson” (the signer of the document), of Catherine Nicholson
“No other will of decedent was found .... It also appears from the testimony of John Auth that two or three days before decedent’s sudden death he discussed with him the matter of whether or not he had
‘A. Well, I ashed him, I says, “George, you are a pretty sick man.” I says, “You know, it won’t make you die any quicker, but everybody should have a will.” I says, “Now, I don’t know what you have got, but I imagine you have — you have got that property, and, I suppose, you have some in the bank.” He says, “Yes, I do.” I says, “Do you have things fixed?” He says, “Yes, my niece,” Mrs. Nicholson, “Kathy”, I think he called her, he says, “she has the papers.” ’ ”
Although the parol extrinsic testimony was admitted without objection, we are required to consider its effect upon the question whether or not the probated paper constitutes the last will and testament of decedent. Where a writing by its terms clearly constitutes a testamentary disposition, evidence of a contrary intent is inadmissible: Lillibridge’s Estate, 221 Pa. 5, 69 A. 1121; Gibson’s Estate, 128 Pa. Superior Ct. 44, 193 A. 302. Conversely, where a writing is obviously not a will, evidence of testamentary intent is not admissible: McCune's Estate, 265 Pa. 523, 109 A. 156; O’Connor’s Estate, 273 Pa. 391, 117 A. 61. Where, however, such intent is doubtful or equivocal, extrinsic evidence is admissible: O’Connor’s Estate, supra; Smith’s Estate, 308 Pa. 265, 162 A. 214; McKean Estate, 159 Pa. Superior Ct. 409, 48 A. 2d 74.
The questioned paper is undoubtedly equivocal. Standing alone the words “Catherine, I want you to know you are to get all I have when I die” are dis-positive. Since such gift is stated to become effective “when I die”, the words are testamentary in character. But such words are contained in and are part of an informal letter written by decedent wherein he expresses his pleasure with his vacation (spent at Cath
There are many elements in the uncontradicted extrinsic testimony which indicate that decedent intended this informal letter to be testamentary. This niece (appellee) in her early childhood lived in decedent’s home as a member of the family; a close and cordial friendly relation between her and decedent continued until decedent’s death; decedent was not friendly with his brother (the appellant) who lived in Toledo, Ohio; there was no close association with decedent’s other nephews and nieces; appellee and decedent frequently visited each other and while at appellee’s home decedent wrote and left for his niece the questioned document; no formal will, or other dispositive writing was
We agree with the learned court below, in its well considered opinion, that the probated paper in question, in the light of the extrinsic testimony, constitutes the last will and testament of decedent. The appeal from probate was properly dismissed.
Decree affirmed, at cost of appellant.